Let’s start with the bottom line: The federal government threw a citizen in prison because he would not give up his right to free speech. In the United States of America. In 2020.
Back in late May, Michael Cohen — President Donald Trump’s former personal attorney who, apparently by law, must always be called Trump’s “fixer” — was released early from federal prison because of concerns about the Coronavirus. Cohen had been sentenced to serve three years behind bars, but he got out about a year and a half early. (Curiously, Cohen had initially been slated for release in April, but that got postponed by a month). Still, all in all — lucky break, one that few federal inmates ever get.
But it didn’t last long. On July 9, Cohen was taken back into custody because he refused to sign a form stipulating that, as a condition of his release, he would refrain from any “engagement” with the media, including social media or books (it already had been widely reported that Cohen was writing a tell-all book about Trump).
Cohen remained behind bars for over two weeks until a federal judge in the SDNY, Alvin K. Hellerstein, ordered his release. Hellerstein ruled that the federal government’s decision to re-incarcerate Cohen was made in retaliation for Cohen refusing to sign the form and give up his First Amendment rights. (The Justice Department meekly protested that Cohen had been “combative” and “antagonistic” during his meeting with the authorities. Well then — combative and antagonistic? Off to prison with you!).
In the gag order presented to and rejected by Cohen, the federal government flailed to justify its demand for his silence, noting that “The purpose is to avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community.” This is one of those explanations that’s so bad that it actually exposes ill intent. Release conditions serve two, and only two, legitimate purposes: (1) to ensure the releasee does not flee, and (2) to ensure the releasee does not harm the community or himself. Who put the Bureau of Prisons in charge of monitoring whether a releasee “glamorizes” or “brings publicity” to himself or anybody else? How is that in any way the business of our government?
The whole scenario feels like George Orwell or Ray Bradbury fan fiction. It resembles a cliched, slightly over-the-top work of amateurish dystopian surrealism: sign this piece of paper and agree not to speak ill of our leader, or else we’ll lock you up. But it was very real. Cohen spent 15 very real days locked up behind very real bars at the very real federal correctional center in Otisville, New York because he would not agree to stay silent (or, perhaps, because he acted “combative” and “antagonistic,” heavens to Betsy!).
During my fourteen years as a prosecutor, I saw countless defendants placed on court-ordered supervision while on bail, probation, parole, supervised release, or home confinement. Virtually every one of those individuals had to abide by court-ordered conditions of release including, for example, curfew, restrictions on travel, electronic monitoring through an ankle bracelet, or mandatory drug testing. These are all common, perfectly appropriate, and lawful conditions of release.
But I have never seen a condition like the one presented as a “take-it-or-else” to Cohen. Nor has the federal judge who heard Cohen’s case, who noted that in his 21 years on the bench, he had not seen such a restriction imposed on a releasee.
Despite the seriousness of what went down between the federal government and Cohen, there seems to be a bit of a tendency to shrug it off, or at least look past it. I see two factors at play here.
First — I’ll be candid — people just don’t much like Michael Cohen. He’s not a sympathetic figure. I get it. He started as a knockaround New York City lawyer whose practice centered on the shady world of taxi medallions. He rose to prominence by clinging desperately to the coattails of President-to-be Donald Trump, adopting Trump’s scorched-earth style by attacking anybody who dared question or challenge the bossman (memorably threatening to do “f***ing disgusting” things to one adversary). Cohen then pled guilty to a litany of federal crimes ranging from tax evasion to bank fraud to breaking campaign finance laws by making hush money payments to women who allegedly had affairs with Trump. Now he seems to waffle between playing the victim and the righteous seeker of vengeance.
So, if Michael Cohen bothers you, fine. But it’s not about Michael Cohen — it’s about what the federal government did to him. Forget about Michael Cohen and imagine if this happened to your favorite columnist — say Maureen Dowd, Jemele Hill, George Will, or whoever resonates for you. Feels like a bigger deal, doesn’t it? It’s not about the source of the speech; it’s about what the government did to suppress that speech.
Second, there’s simply a tendency after a while to get numb, given the sheer volume of abuses we’ve seen from the Justice Department, and the federal government generally, over the past few years. I once tried a case in the SDNY where we had so much evidence of so many crimes that I started to get a feeling that the jury was losing its ability to care much about the lesser (but still serious) crimes. Please, I urged the jury during closing — do not go numb. Step back and remind yourselves that none of this is normal or acceptable. Just because one bad act is surrounded by many other equally bad or even worse acts, don’t just shrug your shoulders at the less explosive stuff.
This isn’t over yet. Cohen’s lawyer, Danya Perry (disclosure: a friend and former SDNY colleague of mine — yes, we are everywhere) has raised the possibility that Cohen might sue the federal government. Take it from me — Perry isn’t playing around.
If Cohen does sue, the discovery process could yield an answer to the biggest remaining question: how high up did this go? Was the decision made by some mid-level Bureau of Prisons staffer, perhaps overthinking or overreacting to Cohen’s situation? Or did the decision to present Cohen with a shut-up-or-get-locked-up ultimatum go higher up the chain at the Justice Department, or beyond?
This is a big deal. It’s hard to think of anything more un-American, more anti-democratic, than “Be silent or go to jail” — particularly when the silence relates to criticism of the president. But it just happened, right in front of our faces. And now we need answers.